New SC Expungement Law Will Allow Expungement of Minor Drug Convictions

The South Carolina House and Senate have passed a bill that expands the types of convictions that are eligible for expungement in SC.

The new expungement law will allow minor drug offenses to be expunged, it changes the provisions of the Youthful Offender Act (YOA) to allow expungements of youthful-offender convictions that would have been eligible prior to the 2010 amendments, and it adds provisions that are specific to SC employers.

What are the details of the new expungement law? And, how could anyone possibly oppose these changes?

What are the New Expungement Laws in SC?

The amendments to SC expungement law will make huge changes to who can have their record expunged, including drug offenses and YOA-eligible offenses.

When Can a SC Drug Conviction be Expunged?

The new law will allow expungement of any first-offense conviction for simple possession of any controlled substance. or a first-offense conviction for illegally possessing a prescription drug, after three years.

This adds to the already-existing expungement law that allows any first-offense misdemeanor punishable by 30 days or less to be expunged after three years.

Furthermore, convictions for possession with intent to distribute (PWID) of any drug can be expunged after 20 years.

YOA Expungements

The change to YOA expungements is also significant – if you have a conviction for a non-violent offense when you were 24 years old or younger prior to 2010, even though you did not plead guilty under the provisions of the Youthful Offender Act, you can now have your record expunged.

Other YOA expungements remain the same – you are required to plead guilty under the Youthful Offender Act, then your record can be expunged five years after completion of your sentence.

How Does the New Law Affect SC Businesses?

The expungement law now prohibits SC employers from considering an expunged offense when hiring new employees, and it protects SC employers from liability related to hiring employees who have expunged offenses:

Employers will not “be subject to any administrative or legal claim or cause of action related to the worker’s expunged offense;”

Employers cannot “use expunged information adversely against an employee,” with an exception for criminal justice agencies; and

Expunged convictions cannot be “used or introduced as evidence in any administrative or legal proceeding involving negligent hiring, negligent retention, or similar claims.”

When Does the New Expungement Bill Become Law?

As of today, it is waiting for the governor’s signature. Assuming the governor signs the bill, it will go into effect six months from the date of the governor’s signature.

What’s Bad About the New Expungement Law?

I was disgusted when I found this article railing against the new expungement laws.

The author believes that expungements “rewrite history.” The thrust of the article seems to be that “erasing history” is bad for the business community, and that the bill should not force employers to disregard expunged offenses. But, it then goes on to talk about how the business community supports the bill…

The rest of the article seems to be based on the author’s mis-reading of the text of the bill, even acknowledging “perhaps I’m misreading it.” For example, she believes the bill will allow expungement of multiple convictions, based on the language that says offenses “that are closely connected and arose out of the same incident” should be counted as one offense.

Maybe if the author had consulted with an attorney before publishing, she would have known that offenses that are closely connected and arising out of the same incident are always counted as one offense, and always have been for purposes of expungement or enhancement by prior convictions…

It does not mean that a person who commits multiple offenses over a period of time can have all of the offenses expunged. It means what it says, and it does not allow for expungement of multiple offenses. Closely connected and arising out of the same incident = one offense.

So, the best opposition piece I could find is poorly written and researched, provides no rational logic to oppose the bill, and sounds like arbitrary meanness to me – if you believe that minor first-offense convictions should remain on a person’s record for their entire life, or that youthful offenders should not have a second chance at a clean record…